Legal Issues / Kline: Unmistakable Marks

Breaking Down the Rules of Construction

January 12, 2014
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Surveyors deal with the rules of construction each time they read a deed and attempt to walk in the footsteps of the original surveyor. While it would be tempting to refer to these as basic principles, the permutations found among the many jurisdictions that make up the nation seem anything but “basic.”

The rules of construction (also referred to as the “priority of calls”) are commonly applied by the courts when attempting to determine the location of a deed on the ground. The judicial basis for this collection of principles is well established. These priorities have been developed over the centuries as a tool to aid in the determination of the intent of the parties when various elements of a description are ambiguous or conflicting.

One basic tenet of these principles states that the rules of construction may not be applied where the terms of the description are clear and unambiguous. They are rather the first line of defense against conflicting elements, ambiguous phrasing or other irregularities that may appear in a deed or other document: “The object of the descriptive part of a deed is to define what the grantor meant to convey and the grantee to receive; and when the intention of the parties is apparent and plain on the face of the deed itself, there is no room for construction.”1 The Virginia court states this concept even more succinctly: “it is not permissible to interpret that which has no need of interpretation.”2

One of the earliest distinctions made among various elements of a legal description was between natural monuments and measurements. At this early stage of the nation’s history, distinctions between other elements of a description (including call to adjoiners, artificial monuments and area) were apparently of little concern. One critical point when considering this premise is the necessity that the monument called for be properly identified in the description. “The general rule is that the calling in a grant or deed control in locating the land conveyed thereby, subject to the exception that where a natural object or monument is called for, and it is susceptible of location, such natural object or monument, when located, will control the course and distance; but such calls must be both reasonable and certain.”3

The beginning of the 20th century was marked by increasing use of artificial monuments to perpetuate boundaries and a general (but hardly universal) increase in the complexity of legal descriptions. With this trend came the real possibility that there might be three or more conflicting elements—even within the description of a single line. Deed calls including several elements necessitated additions to the original presumption noted above.  While variations between states will be found at times, Ohio common law as described in Broadsword v. Kauer provides a representative example, requiring the surveyor (and the courts) to apply the following standard: “natural and permanent monuments are the most satisfactory evidence and control all other means of description. …First, natural boundaries; second, artificial marks; third, adjacent boundaries; fourth, course and distance, course controlling distance, or distance course, according to circumstances. Area is the weakest of all means of description.”4          

 

Some jurisdictions may show a preference between course and distance, but both are measurements and thus generally considered more liable to error than natural monuments, artificial monuments or established adjoining boundary lines. A few courts have attempted to argue the primacy of bearings over distances. One train of thought supporting this premise presumes that bearings measured (by the surveyor or party chief) are more reliable than distances measured by chain-carriers (who may well have been neighbors or relatives of the owner of the tract surveyed). Another similar line of reasoning notes that bearings measured in steep and rocky terrain may be more reliable than chained measurements across gullies and rock faces.

The modern consensus of opinion in many jurisdictions holds that any presumption between course and distance is sufficiently tenuous to allow legitimate evidence based on the specific circumstances to control in that particular retracement. An early Virginia ruling states: “In Smith v. Chapman, 51 Va. 445, 10 Gratt. 445, it was said by Judge Lee, in delivering the opinion of the court, that to say that distance shall yield to course, or vice versa, where there is a conflict between the distance of one line and the true course of another, would be entirely arbitrary; and the true rule seems to be that the one or the other shall be preferred according to the manifest intent of the parties and the circumstances of the case.”5

Broadsword v. Kauer provides two additional items of interest in the debate over the primacy of bearings or distances. The phrase “generally in the order stated” indicates that the priorities are considered a rebuttable presumption, assumed to be true until such time as significant evidence to the contrary appears. In addition, this ruling makes clear that the underlying principle behind this list of priorities is the premise that more certain and unambiguous elements will control those that are less certain and more prone to error or miscalculation. “The ground of the rule is that mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visible and permanent. The reason assigned for this rule is that monuments are considered more reliable evidence than courses and distances. A description by course and distance is regarded as the most uncertain kind of description, because mistakes are liable to occur in the making of the survey, in entering the minutes of it, and in copying the same from the fieldbook.”6 The rules of construction are guidelines only and should not be considered a straightjacket.

Ultimately, area or quantity remains at the bottom of the list for a very legitimate reason—despite the disappointment it will cause for many landowners. As the calculation of area depends on the accuracy of all measurements of the perimeter of a given tract, a significant error in any bearing or distance will virtually guarantee an erroneous result for the calculated area.

States vary in their assessment of the relative strength of a call to an adjoining boundary line as compared to the other elements of the rules of construction. Some jurisdictions consider adjoining boundaries to be a type of monument, while others (such as Ohio) consider calls for adjoiners to constitute a separate category just below artificial monuments. Generally, a call for an adjoining boundary line is subject to two caveats. As with a natural monument, the adjoining line must be properly identified. It must also be susceptible to location with reasonable certainty. This makes any call to an adjoining line a somewhat elusive concept. Where the line was never properly marked and no evidence exists on the ground as to the location of the line, the level of control exerted by call for adjoiner may be less. By contrast, a widely recognized boundary line with well-monumented endpoints will more likely control against other deed elements.

The Pennsylvania court presents an unusual viewpoint when it considers a possible discrepancy between marked lines and calls for the boundary of an adjoining property owner. Carroll v. Miner observes: “The courses and distances in a deed always give way to the boundaries found on the ground or supplied by proof of their former existence when the marks or monuments are gone. Even calls for adjoining tracts sometimes give way to monuments and marks upon the ground. A marked line is a very common monument, and when well established will prevail over a call for an adjoiner.”7 The use of the words “sometimes” and “when well established” illustrates the possible difficulties that the surveyor may face when confronted by this situation. It should also be noted that Pennsylvania has long recognized the concept of practical location of boundaries.

West Virginia echoes this sentiment with the following statement: “The location of the lines of a survey is to be determined by the lines as actually run upon the ground, where this can be ascertained; nor will this rule be varied by the fact that an adherence to it would give to the locator less land than he was entitled to by his certificate. Nor is the rule varied by the fact that a call is made to run to the line of an older survey, if that line was never reached in the survey actually made, but the surveyor stopped at another line which was mistaken for it.”8

Remember that rules of construction (along with other presumptions of law that may be applied to determine intent) do not apply exclusively to deeds. Other types of documents including wills, written contracts, and documents related to dedication or acceptance of easements will apply these principles where the determination of intent or location of a boundary are pertinent questions. “The paramount principle in construing or giving effect to a will is that the intention of the testator prevails, unless it is contrary to some positive rule of law or principle of public policy. The intention of a testator must be judged exclusively by the words of the instrument. Legal presumptions and rules of construction may be resorted to only when the language of the will affords no satisfactory clue to the real intention of the testator.”9

           

When applied in an unthinking manner, the rules of construction may become an additional source of difficulty. These guidelines are among the most commonly cited principles in courtroom boundary disputes and there may be a tendency to focus too much on particulars of one phrase at the expense of significant information in other portions of the deed. (See “What Did You Really Mean”, POB, March 2012). When the surveyor is testifying as an expert witness, an attorney may attempt to convince the surveyor (and the jury) that the proper course of action is to retrace a description based upon a small portion of the deed while conveniently ignoring other important information found within the same document.

The rules of construction are always applied to ascertain the intent of the parties. Many courts have said that no rule—no matter how well-established—may be applied where it clearly defeats the intent of the parties. The surveyor is strongly encouraged to consider all language used in the document under consideration. This includes the language often referred to as “boiler plate” portions of the description. This principle is one basis for the common phrase “the four corners of the deed.”

An early Maine decision has this to say: “In modern times, they have given way to the more sensible rule of construction, which is in all cases to give effect to the intention of the parties if practicable, when no principle of law is thereby violated. This intention is to be ascertained by taking into consideration all the provisions of the deed, as well as the situation of the parties to it.”10 Although we might be amused at a ruling that refers to an 1853 decision as “modern times,” this decision certainly underscores the durability of the rules of construction.

While common sense is not always considered by the general public to constitute any part of many court decisions, courts are encouraged to apply common sense when applying the rules of construction. Humor is not completely alien to the justices, as may be seen in this admonition to examine the entire document. In this Kentucky opinion, judges were also able to inject some levity into the application of common sense when determining intent of the parties: “In determining the intention of the parties, courts look at the whole deed, along with the circumstances surrounding its execution. … In attempting to ascertain intent, courts are admonished to employ common sense—all too often a rare guest in the house of the law. … Fairness, justice and common understanding must enter into the interpretation of any instrument, and an apparent mistake in the use of words will not be permitted to impair what was the real intention of the parties or to defeat their obvious purpose.”11

 

This decision also emphasizes another related principle often applied by surveyors. If an obvious mistake has been made in the drafting of a legal description and the mistake can be clearly identified and proven, the mistaken portion of the description should not be allowed to further distort the remaining portions of the description that were correctly drafted. For example, if a northwest bearing is mistakenly written in the place of a northeast bearing, the line should not be run through the neighboring house in blind obedience to the words in the description.

An early West Virginia opinion agrees that fixing errors at the source is the only reasonable course of action when considering the possible conflict between courses and distances: “That where there is a conflict between the distance of one line and the course of another, either the course or the distance shall control, according to the manifest intent of the parties and the circumstances of the case; (2) where it can be ascertained from the lines and courses extant that the mistake is produced by an error in one of the courses, then the correction ought to be made with reference to that mistake, so as to make the survey conform as near as may be, without violating established principles of law, to the manifest intent of the parties, and, on the other hand, where it is shown by the extant and identified lines and corners of the survey that the mistake is produced by an error in the distance of one of the extant lines, then the correction ought to be made with reference to that mistake, so as to give effect as far as possible to the manifest intent of the parties; (3) and, in applying these rules, the shape of the survey as originally platted, and the quantity of land called for, may be considered, though the weight to be given to these is generally very inconsiderable.”12

 The variations within this “basic doctrine” seem to outnumber the states in which the standards are applied. This is only the beginning.  

Bibliography

1.         Winter v. White: 70 Md. 305; 17 A. 84 (1889)

2.         Bailey v. Town of Saltville: Va. Circuit Court Record No. 090989 (2010)

3.         Brown v. House: 116 N.C. 859; 21 S.E. 938 (1895)

4.         Broadsword v. Kauer: 161 Ohio St. 524; 120 N.E.2d 111 (1954)

5.         Green v. Pennington: 105 Va. 801; 54 S.E. 877 (1906)

6.         Broadsword v. Kauer: 161 Ohio St. 524; 120 N.E.2d 111 (1954)

7.         Carroll v. Miner: 1 Pa. Super: 439 (1896)

8.         Matheny v. Allen: 63 W. Va. 443; 60 S.E. 407 (1908)

9.         Farmers & Merchants Bank v. Gelwicks: 158 W. Va. 1012; 216 S.E.2d 769 (1975)

10.       Pike v. Munroe: 36 Me. 309 (1853)

11.       Linebaugh v. Carroll, 2009-CA-000888-MR (KYCA) (2009)

12.       Ruffner’s Heirs v. Hill: 31 W. Va. 428; 7 S.E. 13 (1888)

Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.

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